Sotomayor’s Confirmation—What Her Victory May Cost the Republicans

Conservatives tried to convince the Senate, and the nation, that an impressive judge with an impeccable record was simply a product of affirmative action. It didn’t work.
By Peggy Simpson for the Women’s Media Center, reprinted with permission.

The confirmation of Sonia Sotomayor as the third woman and first Latina to sit on the Supreme Court never was a done-deal.

It might look like it from the 68 to 31 vote of approval in the Senate Thursday.
But there were bumps along the way, potential derailments that were dealt with and some bizarre resurrections by conservatives of Reagan-era complaints that white males were victims of affirmative action policies that benefit women and minorities.

Here’s what helped Sotomayor clinch the job:

  • impressive coalitions by liberal advocacy groups, including the Leadership Conference on Civil Rights, with feminist and reproductive rights groups stifling initial qualms about their uncertainties about her views on abortion;
  • unwavering support from Team Obama, especially in the midst of early accusations by conservative activists that she was a racist or worse, when even some supporters were nervous about remarks she made in 2001 about the virtues of being a “wise Latina.” She never apologized or took back those thoughts but did acknowledge a “poor choice” of words;
  • most of all, her own steady performance before the cameras in hearings that had been expected to feature fireworks but instead bordered on boring. Boring was good, in this context. Behind the scenes, Sotomayor visited with an unprecedented number of senators and by all accounts was a charmer. She carried that civility and personal touch into the Senate hearings with gestures, smiles and mini-conversations with GOP senators she knew would oppose her.

It didn’t hurt that firebrand commentators such as Rush Limbaugh but also former House Speaker Newt Gingrich came out swinging, accusing her of racism. But Gingrich had second thoughts, remembering his national ambitions.

GOP former Representative Tom Tancredo of Colorado escalated the rhetoric and accused her of links to a “KKK” type of advocacy group—the National Council of La Raza, which has more than 300 nonprofit affiliates in 41 states and is recognized as a bipartisan force in national politics. Tancredo’s attack backfired but it brought the NCLR new donors and prompted 5,000 people to sign a petition urging Republican leaders to tamp down the incendiary words. (They didn’t step up to the plate and all Republicans invited to speak to the NCLR national convention this summer turned them down.)

The biggest bonus for Democrats was the spectacular flame out by two key conservative Republican leaders and defenders of family values who were silenced in the debate. They were enmeshed in their own sex scandals, including lying to their wives as well as the public about consorting with sweeties (in Argentina, in the case of the governor of South Carolina).

The Sotomayor-nomination era had many notable moments.

One of the more bizarre came when MSNBC’s new hotshot host Rachel Maddow invited her colleague, conservative columnist, Pat Buchanan, to elaborate on why he was pushing Republicans to work harder to mobilize white conservatives against Sotomayor. Republicans, he had written, “must expose Sotomayor as a political activist whose career bespeaks a lifelong resolve to discriminate against white males.”

After Buchanan insisted Sotomayor wasn’t qualified to be on the high court but was “an affirmative action appointment” by Obama, Maddow asked what he thought affirmative action was for. Buchanan said its goal was “to increase diversity by discriminating against white males.”

And how is it, Maddow asked, that 108 of the 110 Supreme Court justices in the history of this country have been white?

And then came this remarkable Buchanan answer:

“Well, I think white men were 100 percent of the people that wrote the Constitution, 100 percent of the people that signed the Declaration of Independence, 100 percent of people who died at Gettysburg and Vicksburg. Probably close to 100 percent of the people who died at Normandy….This has been a country built basically by white folks.”

Maddow disagreed, saying that affirmative action was recognition that “people were discriminated against for hundreds of years in this country….that you sort of gamed the system, unless you give other people a leg up.”

Buchanan went back to his argument that Sotomayor got ahead only because of affirmative action. When Maddow asked if her very high grades at Princeton also were due to affirmative action, Buchanan then took a swipe at the Ivy League schools, saying that “half the class graduates cum laude these days.”

For a brief time, Republicans thought they had found pay dirt in discovering that Sotomayor belonged to an all-woman private club in California. About 100 professional women belong to the Belizean Grove, a takeoff on the controversial Bohemian Grove male-only club. That didn’t really take off. And no one mentioned the all-male Augusta Country Club, either, which continues to sponsor national golf tournaments. Sotomayor resigned her membership anyway.

In the end, all Democrats (except for the ailing Senator Ted Kennedy) and nine of the 40 Republicans voted for Sotomayor. The GOP opponents included 12 who face re-election next year. Of the seven Republicans likely to retire, four voted to confirm her.

But the Republicans weren’t much swayed by the Hispanic vote: the five GOP senators in states where Latinos are 20 percent or more of the population all opposed Sotomayor, including Kay Bailey Hutchinson of Texas.

This dramatizes the Republican dilemma of a party where core conservatives control the party— and the primaries—and nearly all of them are white Anglos. President George W. Bush took 44 percent of the Hispanic vote in his first term, but by 2008, that had plummeted to 30 percent.
Even worse, recent polls say Hispanics “disfavor” the Republican Party by a 55 to 8 margin, according to Pew pollster Andrew Kohut.

So will a vote against Sotomayor matter? The Republican analysts said, mostly, not to worry. Voters have a short attention span, and a Supreme Court vote won’t be as important as the shape of the economy by the next election.

Don’t count on it, says Lisa Navarrete, vice president of the National Council of La Raza.

“Folks saying they don’t see the impact of this nomination on our community don’t see the unity this has brought,” she said. “There are a lot of differences between Puerto Ricans in New York and Cubans in Florida and other Hispanic groups. Everybody came together on this. It did matter. People understood the milestone that had been reached.”

How Do You Rate Media Coverage of Sotomayor?

A colleague asked me whether I thought this Washington Post article by Amy Goldstein on soon-to-be Supreme Court Justice Sonia Sotomayor is sexist. I read it over twice–it’s long!–and thought it was quite engaging. It told me a few things I hadn’t seen elsewhere about Sotomayor’s life and personality. It reveals self-doubts that might not have been pointed out in an article about a male candidate. In fact, now that I think of it, I don’t recall such a focus on insecurities in profiles of powerful men–is there someone who’d like to do a quantitative analysis of that question?

The Women’s Media Center’s Media Justice for Sotomayor campaign is posted below. It has some egregious examples of racism and sexism from shortly after she was nominated. How do you think the media has performed during the actual hearings so far?

I’d love to know what you think. Please share examples if you have them, along with your opnion.

Sotomayor Confirmation: ‘Splaining Bias and Other Tidbits of Gender and Ethnicity

Are You Biased?

Yesterday, Sonia Sotomayor faced down predictably pointed questions from white male Republican senators who seemed to be worried their hegemony might be on the wane. She was asked repeatedly about what biases she might bring to judging in light of her comment that a “wise Latina” might just make better decisions because of her gender and ethnicity. I wasn’t especially impressed by her answers that apologized for her words, because frankly, I agree with her original contention that we all benefit from our experiences, and I think that the experience of discrimination often makes one especially committed to liberty and justice for all.

Peter Winn, now a professor of history at Tufts University who taught Sonia Sotomayor at Princeton, had this to say in a Washington Post commentary about the pervasiveness of bias in general and Sotomayor’s biases  specifically:

I must take responsibility for her mention of a “bias.” I taught Sonia that people often have strong opinions on issues that they care enough about to research, but what is critical is that they recognize those biases and set them aside. That is what Sonia did in her senior thesis. I still think it is a best practice for a student — or a judge.

What’s the Power of Perspective?

Do you suppose those, largely male, largely white, people who have for many years held most power positions in American society never had any biases? If that’s what you think, it is probably because their biases have so infused the culture that they are called “the norm.” Barbara Cohn Schlachet, a psychologist/psychoanalyst, wrote about the influence of gender and ethnicity in how we perceive the world around us in her Women’s Media Center analysis:

When I was in psychoanalytic training, a colleague mentioned to me a female patient who, he said, frequently saw men exposing themselves to her on the subway. I commented that “flashers” were not uncommon on the subway, to which he scoffed, “I’ve never seen a flasher on the subway!” My curiosity was piqued. I asked male and female friends and colleagues whether they’d seen subway flashers; not surprisingly, none of the men and all of the women had.

I bring this anecdote up to illustrate the fact that what we see is determined by who we are; that the world is perceived differently, though not necessarily incorrectly, by our own experience of it. This is particularly relevant right now, when questions about whether Supreme Court Justice nominee Sonia Sotomayor will let her gender and ethnicity inform her thinking on the bench. According to much scientific and philosophical thought and theory, it would be impossible for her, or, for that matter, anyone else, not to.

In The Structure of Scientific Revolutions (1962), Thomas Kuhn posits that every society has an underlying paradigm that pervades every aspect of a culture—its science, aesthetics, politics, social structure, literature, even its forms of aberrancy. Scientists try to fit nature or data into the boxes that the paradigm supplies. Even in the hard sciences, which almost define our notion of objectivity, what we study and discover is determined by what we see, and what we see is dependent on our paradigm. Our paradigm prepares us for what we are going to see, what areas are to be investigated and how we will interpret what we find upon investigation.

Judge Sotomayor must, by virtue of her experience as a woman and as a Latina, bring a different, though not necessarily a more “empathic” or “emotional” perspective to her judicial work. This is no more the case than it would be for, say, Justice Alito, who comes from the experience of a white, Catholic male of Italian background. Judge Sotomayor is the product of a different paradigm, and would be expected to see aspects of an issue that the majority of the court might not see. This does not mean that she would necessarily be voting in favor of women or minorities; simply that she might add another voice to be considered, in the same way that I did in discussion with my male colleague, who didn’t “see” flashers on the subway, not because he was sexist, but because being “flashed” was not part of his experience.

There has been much speculation about whether or how Sotomayor’s gender, ethnicity, and religion might affect her position on reproductive rights. Though shorthand is usually “abortion” and “Roe v Wade”, really we are talking about the right to make childbearing choices, including birth control, abortion, childbirth, adoption, and overall moral agency over one’s own body and life. That’s why I was concerned enough about her less than forthcoming answers on this topic to tweet this question earlier today”

@heartfeldt So if #sotomayor wasn’t asked about abortion, didn’t Obama break his campaign promise to appoint only judges who affirm repro rts?

Here’s the resulting exchange from my Facebook page:

  • oh the scuttle on this is so disheartening. we’re being urged not to worry. there is supposed to be some sort of “knowing without saying” that we’re supposed to swallow, instead of an outright position statement.
  • does that make YOU feel comfortable? …and statements that roe is “settled law” don’t really mean anything, because it’s settled until it’s reinterpreted or further limited, etc etc.
  • Once she gets confirmed…roe vs wade will not be touched…
  • Roe is necessary, but no longer sufficient. If she merely upholds precedent, then she will be upholding many restrictions on reproductive rights that previous courts have let stand while upholding Roe’s underlying principle of a right to privacy.
  • I am not comfortable at all. Especially since the Obama administration has coached her comments. Rather than taking the issue head on, they are trying to avoid it. Red flag to me.
  • well, Obama has just appointed a surgeon general who got a commendation from pope benedict for her work. catholic websites celebrate her appointment… there’s a pattern developing there, hot on the heels of Collins (of creationist fame) appointment as head of the NIH.
  • Which this administration is doing with gay rights too. Maybe I was expecting too much but I had such (clearly unrealistic) hopes with this administration. It makes me feel foolish. I not only voted for him but I did it excitedly and while staunchly defending him. Sotomayer better be playing to her audience and end up being pro choice!

McClatchy’s recap of this exchange between Sotomayor and Senator Cornyn (R-TX) is an example of what we were talking about–cause for concern or just political theater?

The first exchange over abortion came as Cornyn noted that the White House reportedly was offering vague assurances to abortion rights groups in May that Sotomayor would be sympathetic to their views.

How would they know that? Cornyn wondered.

Sotomayor said she didn’t know.

“I was asked no question by anyone, including the president, about my views on any specific legal issue,” she said.

Cornyn said he wondered what the basis was for such White House whispers.

“You just have to look at my record to know that in the cases that I addressed on all issues, I follow the law,” Sotomayor said.

Cornyn had other evidence, citing statements from George Pavia, a former Sotomayor law colleague, that he could “guarantee” she’d be for abortion rights. On what basis could he say that? Cornyn asked.

“I have no idea,” Sotomayor said, “since I know for a fact I never spoke to him about my views on abortion or, frankly, my views on any social issue. . . . I have no idea why he’s drawing that conclusion.”

In her 17 years as a federal district and appellate judge, Sotomayor rarely got involved in abortion cases. She did rule on President George W. Bush’s “Mexico City policy,” which barred public funds to organizations that promote abortion in other countries. President Barack Obama reversed the policy in January.

Sotomayor sided with Bush, ruling against the abortion rights groups, in her 2002 decision. Her ruling relied largely on legal precedent, however, and didn’t deal with the abortion issue.

Sen. Tom Coburn, R-Okla., tried to pin down Sotomayor, but she wouldn’t bite.

Asked to described “settled law” on abortion, she said she abided by current law, and she recited recent court rulings.

What about late-term abortion, Coburn asked, if a 38-week-old fetus has a terrible disease?

“I can’t answer that question in the abstract,” Sotomayor said.

How about the impact of technology on current precedent? Technology, Coburn said, has made it easier to detect life since the landmark 1973 Roe v. Wade ruling, which opened the way for legal abortion in many cases.

“All I can say to you is what the court’s done and the standard the court has applied,” she said. As Coburn pressed, Sotomayor wouldn’t offer any personal views. “We don’t make policy choices in the court. We look at the case before us,” she said.

Gnash teeth. Wondering whether she remembers how we got George W. Bush as president, ended school segregation, and enabled women to vote–not to mention attend the law school of their choice. Stay tuned…questioning is about to begin again.

Sotomayor–People and Places to Watch for Real Confirmation News

You might be a C-Span or CNN junkie, but if you are looking for some up close and personal takes on the Senate Judiciary Committee’s confirmation hearings on Sonia Sotomayor’s nomination to the Supreme Court, here are a couple of other ideas for you:

Please post your favorite sources for this news in the comments section below. Watch MSNBC’s livestream:

Visit msnbc.com for Breaking News, World News, and News about the Economy

Keep ‘Em Honest: The Media and Sotomayor

The Women’s Media Center has released a new video, “Media Justice for Sotomayor.” It documents some of the racist and sexist comments already delivered on high profile television programs, radio, print and online outlets.

As Judge Sotomayor’s confirmation hearings approach on July 13th, The Women’s Media Center expects and encourages vigorous debate of Sotomayor’s qualifications & abilities. But we call on the media to refrain from allowing sexist and racist remarks to go unchecked.

You can help the WMC campaign for fair media coverage for Judge Sotomayor:


1. Sign on to the WMC statement supporting Media Justice for Sotomayor.
2. Pass this video on to friends, family, and members of the media through Tell-A-Friend.
3. If you are a journalist,
contact the WMC for sources and experts on Sotomayor from our Progressive Women’s Voices program or SheSource.org.
4. If you see examples of sexism, racism or classicism against Sotomayor in the media’s coverage of her confirmation hearings, please send them to the WMC
.

The Meaning of Michelle, Sonia, Ursula and Anne

This is what’s on Anne Doyle’s mind these days as she contemplates the recent rise of women in disparate worlds of politics and business. She’s “tired of tokens and trailblazers”, and looking for real, sustained leadership by women. Thanks, Anne, for sharing this thoughtful post.

What a month it’s been.

First it was an historic, stockholders meeting for Xerox. CEO Anne Mulcahy officially confirmed she will be retiring July 1st and introduced her personally selected and groomed successor, Ursula Burns. Not only will Burns be the first Black woman to head a Fortune 500 company, she and Mulcahy have also charted the path of another milestone: the first woman-to-woman CEO handoff in Fortune 500 history.

Then, my Time Magazine arrived with Michelle Obama’s strong and focused face on the cover. The featured article, entitled The Meaning of Michelle, probed the significance of the journey our national psyche has made as we’ve watched a trailblazing First Lady evolve from “the caricatured Angry Black Woman of last spring to her exalted status as a New American Icon . . . “

Will Sotomayor take Souter’s place and double the number of women on the Court?And when Judge Sonia Sotomayorwas introduced as President Obama’s nominee for the U.S. Supreme Court, we witnessed another subtle shift of our leadership paradigm. Regardless of the gender bashing that Sotomayoris now enduring, this legal heavyweight, who was raised by a single mother working two jobs yet went on to graduate Summa Cum Laude from Princeton and edit the Yale Law Review, is modeling another national brand of fresh possibilities.

Three sterling examples. Each in the stratosphere of influential public arenas: global business,the political spotlight and the judiciary. They are fresh, sparkling evidence of why I am convinced that our nation of women Achievers is moving into an unprecedented era of women Leaders.

What does it all mean? It means women are on the move again.

Several years ago, I was discouraged about our progress. For all of our individual accomplishments, we seemed to be idling in place –stalled just below all those nearly impenetrable glass ceilings in every arena. There was even growing evidence that women were slipping.

Now, I sense the wind is changing. And it feels so good.

I believe the next phase of women’s evolution in the U.S. is about power. Not individual power, but collective power. Throughout all of history there have always been stunningly brilliant, courageous women who slipped their gender chains, bucked cultural pressure and pushed the edges of feminine possibility. Cleopatra, Madame Curie, Golda Meir, Sojouner Truth, Eleanor Roosevelt, Coretta Scott King, Hillary Rodham Clinton. The list goes on and on. But cultural change requires collective power.

That’s what is still missing for women: a broad understanding that every woman for herself is a losing strategy. It’s time to cultivate Sisterhood, with a capital S. It’s time for women to begin actively reaching across racial, cultural, economic and generational lines to lift and lead one another into leadership positions – in big numbers. I’m tired of tokens and trailblazers. It’s time for women’s leadership –in numbers appropriate for 51% of the population and the most educated, skilled and savvy critical mass of women in the history of the world.

And there’s one other piece that’s essential for humanity to make the next significant leap forward. It’s the mindset of men. I’ve been disgusted by the depths to which some male commentators have sunk recently in their drive to derail Judge Sotomayor’s nomination. For example, national radio talk show host G. Gordon Liddy recently opined to his listeners,“Let’s hope that they key conferences aren’t when she’s menstruating or something, or just before she’s going to menstruate. That would be really bad. Lord knows what we would get then.”

How pathetic!

Men who are threatened by the ascent of women are making a critical mistake. For centuries, women and minority men have had to learn to play the games invented and controlled by white men. While everyone else was adjusting and hustling to make the grade according to white, male standards, those born to that homo-social group had little adjusting to do. Yet the rules of the game are changing and the players rapidly diversifying. There are some uncomfortable days ahead for the likes of G. Gordon Liddy. Fantastic,evolved men, who are eager to shed their own gender chains, understand that we will all rise together. Dan Mulhern, Michigan’s “First Gentlemen” and husband of our Governor, Jennifer Granholm, just wrote a terrific piece on this topic called, Father Leaders. His insight is more evidence of how the winds are changing.

What does it all mean? It means our culture is on the rise again. And it feels so good.

About Anne:

Anne Doyle is a Detroit-based leadership and communications consultant, former TV journalist and global auto executive. For more: her website — and blog.

Penetrating Sotomayor’s Judicial Philosophy: My Interview With Diane Walsh

The Glass Wall: The People vs. Obama’s Supreme Court nomination
by Diane Walsh
Penetrating Sotomayor’s judicial philosophy is proving no easy task. Will we get the information we need to properly evaluate the merits of the US President’s ambiguous choice for the high court – before it’s too late? The media is in a frenzied state over this nominee – Judge Sonia Sotomayor. One would expect this, given the stakes that her nomination holds for the fate of abortion rights – which are currently hanging in the balance.

What is Sotomayor’s view about a woman’s right to make childbearing decisions? Oddly, there is nothing concrete that we know about her actual judicial philosophy. No one seems to know exactly – because there is no clear answer being laid bare.

This is creating much unease on both sides of the political spectrum. There is a fundamental lack of information flowing. This is unacceptable. I decided to seek out Gloria Feldt, former president of US Planned Parenthood, to get her take on the Sotomayor nomination. She’s the quintessential trailblazer of the pro-choice lobby.

Gloria initiated the Prevention First Act and reintroduction of a new, improved, Freedom of Choice Act. Her “fight forward” mission is further exemplified on her blogs and through her speeches and writings, all accessible through her website: www.gloriafeldt.com, including 30 years on the frontline. So, needless to say, she’s in a position to evaluate the ‘threats’ that Sotomayor presents, if any, should Sotomayor be confirmed as a Supreme Court Justice.

Diane Walsh: Have you managed to find out whether Judge Sotomayor believes that Roe vs. Wade is “settled law” (under the precept of stare decisis)?

Gloria Feldt: Based on her previous rulings and past approach to judging, it is reasonable to assume that she will say Roe is settled law, but then so did John Roberts and Samuel Alito and we have already seen how meaningless that was in the Gonzales v Carhart ruling. The Court has and can continue to make abortion less and less accessible while maintaining Roe as “settled law”. So even if Sotomayor issued a notarized statement that she believes Roe is settled law, it would be cold comfort to women. The question I want answered is: what is her judicial perspective on who has the right to make childbearing decisions? Roe is almost useless now as a basis for reproductive rights, though privacy remains an important principle and I wouldn’t want to see Roe overturned–as I wrote here, though, we must get beyond Roe and on to human rights for women.

DW: What have you found out that could make us confident that she could be counted on as someone that would ‘definitively and always’ rule essentially pro-choice?

GF: I am not confident at all for two reasons. First, Obama’s spokespersons say he didn’t ask her the questions. That raises a big red flag. Why didn’t he ask, since he said during the campaign that he wouldn’t appoint a judge who would not support a woman’s right to choose? Second, both of her rulings related to reproductive rights have come down on the side of those who will stop at nothing to strip women of the human and civil right to make their own childbearing decisions. Doesn’t [the] murder of Dr. George Tiller [on May 31st, 2009] chillingly remind us of why we must not appease them?

DW: Ditto. Here’s a snapshot of Sotomayor’s climb up the ladder: As an assistant District Attorney (in NYC), early on in her career, she happily threw the book at, as it were, thieves and prostitutes and other so-called ‘undesirables’ of the times; but, later, she is seen to get involved with social housing issues dealing with the poor. Then, later again, she becomes involved with corporatist-leaning projects suggesting that overall she doesn’t necessarily sit on the left side of the political spectrum. You can say if you agree with the characterization, of course. But keeping her ‘history’ in mind, and, also, tracking back to the time of Robert Bork’s nomination, and the grandstanding that he, at that time, was allowed to do – when it was ‘right’ for Republicans to hear about ‘their’ Justices beliefs – I ask you this [following] question, in the context of today’s political climate: Do you not think it is reasonable to hear the political philosophies of Supreme Court nominees?

GF: If we could only get straight answers about judicial philosophies – that would be a giant step forward!

DW: Have we seen a pattern of ‘deciding Justices in secret’, culminating in the present state of affairs? Let me frame this question in more detail: As a public, we don’t even truly know where Sotomayor stands on abortion, strictly speaking. For instance, the last info release NARAL put out to its list members is to encourage us to push to get a fair hearing to be able to ask Sotomayor questions! That is to say we are practically begging to even be able to ask questions of her. How does this work? Is there not something wrong with this picture, that we feel we are in a state of not-knowing?

GF: It’s been said that the role of advocacy is to make it impossible for those in power not to do the right thing. I am more deeply concerned that most of the pro-choice groups aren’t asking their questions pointedly enough and vigorously enough to get meaningful answers. This does not augur well for how much our concerns will be addressed in future appointments, for we all know the squeaky wheel get the attention.

DW: Apparently, President Obama personally knew four other possible nominees – but not the vetted Sotomayor – and she is the one chosen. Does this strike you as a little odd? Janet Napolitano, of the Department of Homeland Security, when questioned, showed extreme ignorance about US-Canada border issues. Yet she was put forth.
What does this say about President Obama’s judgement?

GF: I asked myself this question too as a former CEO. Often I’ve seen a tough decision get made like this: there are many competing recommendations each with good supporting arguments, but none is perfect. The leader is stuck. Then late in the game, someone comes in with a completely new idea, and it is chosen with minimal vetting but great relief. I am not saying this is what happened—I wasn’t in the room. But from the scenario described in the press, I wouldn’t be surprised.

DW: Who would you, Gloria, have liked to see nominated?

GF: I am thrilled at the idea of the first Latina justice. And I think it was essential that he nominate a woman. Fortunately, we now have a deep bench of highly qualified women on the progressive side. I would have preferred to see one of the women whose deep scholarly roots in liberal judicial philosophy might have served to pull the court back toward the center. Someone like Kathleen Sullivan or Pamela Karlan. Both, I believe are Stanford professors. We seriously need someone on the left who can balance Scalia on the right both intellectually and with the same strength of conviction. I am enthusiastic about a Latina and another woman on the court. We’re all best served when our legislatures and courts look like America. But I have expressed concerns about Sotomayor’s judicial philosophy on reproductive rights.

DW: There is a brewing conversation about Sotomayor’s 2002 decision, a case involving the Centre for Reproductive Law v. Bush whereby she upheld the then Bush Administration’s implementation of the Mexico City Policy, that says that “the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.” – and thought by many, on the left, to be quite ghastly. In brief; apparently Sotomayor contended that the policy did not constitute a violation because, she argued, “the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds. Clearly this is fraught with difficulties. What is your view about this? What are your feelings about this decision? Does it take away from Sotomayor’s credibility as far as her being someone the Pro-choice lobby can rely upon to defend the rights of women when it comes to reproductive choice?

GF: To refer back to your fist question, she will claim this was stare decisis, that she stood on precedent, and that is likely to be viewed positively by both Senate Republicans and many Democrats. But several aspects of this decision concern me:

First, she wrote it. So it must illustrate how she approaches such cases. Given that most of the significant cases interpreting Roe since 1973 have been steps backward for women, stare decisis these days means trouble for reproductive rights—not just abortion but also contraception and pregnancy rights.

Second, the ruling rejects CRR’s claim for standing, which would have perhaps allowed them to raise new questions about the gag rule that had not been considered in previous cases, and thus might have allowed even a stare decisis court to relook at some of the issues involved.

Third, often if a judge feels compelled by precedent to uphold a law she feels is unjust, she will write the ruling in a way that suggests to the appellant how to ask the question differently in the future to have a better chance for the court to reconsider the issue. Sotomayor not only didn’t do that; the ruling’s language is clear and simple, offering no wiggle room or invitation to further challenge the gag rule which violates both medical ethics and the first amendment.

DW: What can we do to make things more certain?

GF: We can’t. You never really know what a justice will do until he or she has been on the bench for 5, 10, 20 years. Who would have thought the rather conservative Republican Harry Blackmun would have become the architect of Roe v Wade? But please see my answers to questions 5 and 13 for additional comment on this question.

DW: The Judiciary Committee will of course screen her. Wouldn’t it be ironic if Democrats rejected her and Republicans were seen to support her? Shouldn’t that make progressive Democrats suspicious? Wouldn’t that speak volumes but by then be too late? What would the consequence of this slap to President Obama?

GF: Oh the irony of politics. But this is too speculative to answer right now. In any case, I predict she will sail through, for good or ill, barring the release of some damaging personal information.

DW: Should Obama’s remarks about the need to look for “common ground” not make us all into skeptics given what is frankly, an all-out warring terrain governing pro-life versus pro-choice? Especially since he has said outright that he personally doesn’t like abortion but of course understands that it needs to be available – as if he’s doing us all (on the pro-choice side) – a favor! Because he personally opposes abortion – theoretically, that is – as far as he, himself, is concerned; he cleverly manages to remove any kind of ownership over the issue when advocating the need to make some abortion service available – qualified by programs and abstinence and what ever else he can say to deflect the spotlight. More over, what’s even more shocking is he apparently never asked Sotomayor what her position was on abortion before choosing her. So what he’s asking of us is to trust him. It’s not good enough.

GF: It is infuriating that Obama demonstrates so much leadership and courage on other issues, but when it comes to these most fundamental of women’s rights he demurs, deflects, looks for “common ground”, when on reproductive rights, health, and justice issues, the prochoice position clearly is the common ground. He should just declare it so and move on with a positive agenda such as the Freedom of Choice Act.

DW: What do you know about Sotomayor that could make the rest of us more comfortable with her?

GF: We should not be comfortable. We must continue to ask the questions and persist until we get the answers. And even if we get the answers we want, we must continue to demonstrate grassroots political strength at the ballot box and in legislative policy if we want our views on equality and justice for women to prevail in the courtroom

Sotomayor! Sotomayor? Sotomayor.

Yesterday, Alan Colmes’ new show, strategyroom.com, caught up with me as I was running from meeting to meeting in the rain, and asked me to talk with them about Sonia Sotomayor’s nomination especially related to her reproductive rights decisions. Here’s the video segment, where you’ll see the right-wing guest Wendy Long, acknowledging that the Republicans probably wouldn’t support any Obama nominee. Alan had some great examples of how the issues of empathy and personal life experiences have been used in the past to argue for SCOTUS nominees that might surprise you. Take a look: